Which states have criminalised protest and what forms of protest are criminalised?

Human rights organisations have been increasingly critical towards some Australian states over new legislation which seemingly targets environmental protests in the midst of a global climate crisis.

There are dozens of protest regulations across many states, with five (NSW, Queensland, South Australia, Tasmania and Victoria) introducing forms of anti-protest regulation most recently. South Australia's new laws, passed just last month, increase maximum fines from $750 to $50,000 along with potential jail time, and were prompted by disruption of an oil and gas conference by protestors in early May.

In the aftermath of protests which sought to block port operations and shut down economic action  to draw attention to demands for climate action, the NSW Parliament passed legislation which could see protestors face up to a $22,000 fine and/or prison for a maximum of two years. The legislation targets individuals who block major roads and new tunnels and/or disrupt port operations in major ports such as Newcastle and Port Botany.

In 2022, Tasmania passed anti-protest laws by way of the Police Offences Amendment (Workplace Protection) Bill 2022 under the guise of protecting Tasmanian workers. Under these laws, any protestor who obstructs a workplace during protests could face up to 12 months in prison, the Human Rights Law Centre reported:

“…community member protesting the destruction of old growth forests on a forestry site could face a penalty of over $13,000 or 2 years in prison; and An organisation supporting members of the community to protest could be fined over $45,000.”

Similar laws were also passed in Victoria. Anti-logging protestors who “hinder, obstruct or interfere with timber-harvesting operations” can face up to 12 months in prison and/or a $21,000 fine. PVC and metal pipes which are often used in protest activities are now prohibited in working sites, with additional powers provided to police to search suspect individuals who are “reasonably suspicious”.

In 2019, on public safety grounds, Queensland passed legislation which bans locking devices as modes of civil disobedience. These are tactics used to make it difficult for police to remove protestors and are often used by protestors to lock themselves to property and pipelines to prevent construction of environmentally-harmful projects. Protestors face up to two years in prison and/or a $6,000 fine. It was rationalised on the basis of activists lacing devices with “butane canisters” and other devices which were harmful for law enforcement. However, there is no evidence of the use of these devices.

Does protest place workers at harm?

Both Victoria and Tasmania have criminalised anti-logging protests citing that it puts workers in harm’s way. There is no available evidence suggesting workers are placed at risk by anti-logging protests. In fact, various unions pushed back against anti-protest laws, stating that "the bill wrongly locates workplace risk in the democratic right to protest".

Is the criminalisation of protest a proportionate action for protests which seek to disrupt the economy?

Professor Luke McNamara, an Australian Human Rights Institute Associate and member of the Faculty of Law and Justice at UNSW Sydney, explains:

“The right to protest means very little if it doesn’t include the right to disrupt. Interruption has long been at the heart of effective protest strategies. Some of the most successful and celebrated non-violent protests in history have focused on economic disruption – from lunch counter sit-ins in the USA during the 1960s civil rights movement, to economic sanctions imposed on South Africa during the 1980s in the struggle to end apartheid.

"As the NSW Supreme Court noted more than a decade ago: ‘It is of the nature of a protest that others will be affected and that their routines will be, at least ephemerally, interrupted’ (Commissioner of Police v Langosch [2012] NSWSC 499, [33]).”

For example, the ‘Green Bans’ was a form of economically-disruptive direct action that saved several historical sites and, most notably, the Rocks in Sydney which at the time was to be demolished to make way for office towers. From June 1971, up until 1974, unionised workers with the NSW Builders Labourers Federation would halt any work associated with these developments. Ultimately, this form of direct action economically harmed developers and investors, as developments were put to a halt. Ultimately, planned developments ceased, as labourers withdrew labour and communities mobilised to prevent the developments from taking place. This protected the environment and sites such as the Rocks which the community still holds dear today.

Of importance, even at the time of these bans, media outlets often declared the action as authoritarian and extreme. Additionally, In January 1974, members of the union, activists and residents squatted in Victoria Street, Potts Point to halt a development. The NSW police conducted a raid and carried out mass evictions of squatters who were barricading themselves to the property.

How does Australia compare to other liberal democracies?

Currently, several other liberal democracies are also attempting to water down the right to protest, particularly in regards to environmental protests.

The United States has a plethora of anti-protest legislation targeting direct action. Most recently, in the aftermath of ‘Black Lives Matter’ protest movement in 2020, eight states passed laws increasing penalties for “blocking traffic, tearing down monuments and other unlawful behaviour during a protest or riot”.

In the aftermath of the Dakota Access Pipeline protests, whereby First Nations activists and supporters attempted to block the construction of an oil pipeline, 141 people were arrested and faced felony charges. One of the organisers was sentenced to eight years in federal prison for damaging an energy facility. Throughout the protest, more than 300 people were injured, with the ACLU describing law enforcement agencies and the national guard as “creating a militarised environment to shut down free speech”.

In Canada, documents revealed police had authority to shoot Indigenous protestors who sought to block pipeline constructions. In fact, in the aftermath of pipeline and railway protests by Indigenous activists in 2020, the Legislative assembly of Alberta introduced the Critical Infrastructure Defence Act. This prohibits direct action in the form of protest, blockades and similar activities which interferes with critical infrastructure, including pipelines and mines.

Overall, it is clear Australia has restricted the ability for activists and the broader community to engage in meaningful forms of protest and direct action. Across many liberal democracies, the protection of property and the economy has been given greater weight than the crucial and essential freedom to protest.

Amal Naser was the Human Rights Defender intern at the Australian Human Rights Institute for summer 2022/23.