Angus McFarland
Popular protest movements have shaped Australian society. Women’s suffrage, protected wilderness areas, Aboriginal and Torres Strait Islander land rights and equal marriage are now considered to be a normal part of our lives, but only exist because ordinary Australians took to the streets.
Our history proves that the right to protest is essential to a well-functioning democracy. It attracts a degree of protection under our Constitution. Nonetheless, it is vulnerable to politicians who want to attack protestors and the causes they stand for. We cannot let these attacks succeed. When our right to protest is quashed, so is a pillar of our democratic state.
In NSW, the Roads and Crimes Legislation Amendment 2022 was introduced on 30 March 2022, and passed two days later on 1 April.
It significantly undermines our ability to protest in NSW. It is a draconian measure.
Under s 214A of the Amendment, a person must not ‘block entry’ to a major facility. Subparagraph (d) defines blocking entry as ‘causing persons attempting to use the major facility to be redirected’. Furthermore, s 214A(7)(a) provides that a ‘major facility’ includes Town Hall and Martin Place Railway Stations. The implications are clear. The regular rallies and marches that are held at these stations will be characterised as ‘blocking entry’. The punishment is a $22,000 fine, or two years imprisonment (or both).
To be exempt from the law, you must get prior approval for your gathering from NSW Police. This differs from the previous system where you only had to notify NSW Police of your gathering to be exempt from obstruction offences. Under the old system, if the NSW Police opposed your gathering, they had to take you to court. Now, they have full discretion to deny approval. This gives enormous power to the police to decide which gatherings are ‘OK’ and which are not. The legislation also allows the list of ‘major facilities’ to be increased by regulation, enabling the Minister to add almost any site, road, bridge, or transport link at any time.
We should never support action that is violent or unsafe, however, the new laws are so broad and vague that almost all protest activity without prior approval now risks criminal sanction. For example, a large turnout as part of the Climate Strikes or Reclaim the Night rallies may spill out into the entrance of a nearby railway station. While they do not pose any safety risk, station staff, police or security staff may need to redirect people to use another station entrance. Causing people to be ‘redirected’ breaches the new laws which can result in people being fined and/or imprisoned.
The subjectivity of the laws and the broad definitions within the new laws mean that police and prosecutors will have immense discretion over which protesters to arrest and prosecute.
There is a view by some that union protests have been ‘carved out’ of the new legislation. But the definition of ‘industrial action’ in the legislation is very vague and also demonstrates a fundamental misunderstanding of what ‘being union’ means.
The Australian union movement is the largest and most significant source of organised dissent in the country. We have a long and very proud history of working together in a broad-based coalition with women, students, First Nations People, LGBTIQ+ communities and climate activists. Most union members will at some time in their working life be involved in a protest instigated or supported by their union in relation to an issue that is not linked to ‘industrial action’ under any definition.
Even with the broadest possible interpretation of the legislation, union members would never accept a hierarchy of protest rights, in which we are carved out. Union members are committed to equality and equity before the law and would not accept that others who protest should feel the full brunt of this targeted and punitive legislation while we are seen to be exempt.
This Amendment was rushed through Parliament and unlike most controversial legislation, it has not been the subject of a Parliamentary Inquiry, Public Consultation Process, or reviewed by a parliamentary oversight committee. The Amendment bears many similarities to Tasmanian anti-protest laws struck down by the High Court in 2017. In his judgement, Justice Gageler described these laws as a ‘Pythonesque absurdity’.
The freedom to protest goes to the heart of representative, democratic government. Social change has never been inevitable. Many people in NSW have participated in community action to support issues that they believe to be important.
In Government, NSW Labor should repeal the current Roads and Crimes Legislation Amendment 2022. NSW Labor should never support any legislation that restricts the right of NSW residents to express themselves through peaceful protest.
Angus McFarland is the NSW Secretary of the ASU.