Marine exclusion zone overturned by court in climate protester win

Climate protesters have had an extraordinary win in court against a marine exclusion zone preventing them blockading the state’s busiest port this weekend – leaving the government red-faced.

Protest group Rising Tide has won an 11th hour bid to overturn the state’s marine exclusion zone, which was set to stop them from creating an on-water blockade in Newcastle’s harbour.

Climate activist group Rising Tide returned to the Supreme Court on Thursday afternoon in opposition to Transport for NSW’s decision to prevent them protesting in the water near the Port of Newcastle through the imposition of an exclusion zone.

Protesters would have faced arrest and fines of up to $3300 upon accessing the water.

However, late on Thursday, Justice Sarah McNaughton lifted the exclusion zone minutes before it was set to begin – finding it was “invalid”, in an embarrassing result for the government.

Rising Tide’s barrister argued the four-day marine exclusion zone – set to commence at 5pm on Thursday – was an improper use of the Marine Safety Act, which was intended to ensure events proceeded safely, not to prevent them.

Climate protesters gather on the Newcastle foreshore ahead of the “Newcastle Protestival” which starts on Friday.

Justice Sarah McNaughton accepted these arguments, saying the legislation was not designed to “prohibit the special event it purports to be regulating”.

While the exclusion zone was quashed, Justice McNaughton stressed that didn’t mean the protest activities would be legal, as police hadn’t approved their form application for protest.

Police keep an eye on protesters at the Rising Tide Peoples Blockade of the port of Newcastle in 2023. Picture: Max Mason-Hubers

Cheers rose from the hundreds of protestors gathered at the beach at 4pm on Thursday, as they entered waters at Horseshoe Beach in boats and kayaks.

Rising Tide organiser Alexa Stuart described the “outrageous” exclusion zone as a “massive overreach, from a government who would rather criminalise swimming and paddling in Newcastle’s public waters than allow people to peacefully protest against its climate failures”. “The NSW government was attempting to criminalise peaceful protest...we are excited to have thousands join us as we get out onto the water tomorrow and over the weekend for our historic protest at the world’s largest coal port,” Ms Stuart added.

Police expect hundreds, if not thousands of climate activists to flock to the state’s busiest port this weekend for a protest.

At a press conference on Thursday afternoon, NSW premier Chris Minns said while he wasn’t across all the details, was disappointed by the court’s decision. “We don’t want to stifle protests, we want people to be safe and if they’re going to protest, they need to do it, we hope, in a safe way,” he told the media.

Climate protesters gathering at the Port of Newcastle on Wednesday.

The “profestival” camp in Newcastle.

Rising Tide had earlier withdrawn their form one application to protest at the Port of Newcastle, which provides additional legal protections and was set to be opposed by police in the Supreme Court.

In a press conference on Wednesday, NSW Northern Region commander David Waddell said police recognised the right to free speech.

“Our primary concern is on water safety and public safety on the harbour, there is a maritime exclusion zone which begins at 5pm Thursday and continues through to 8am on Monday,” Assistant Commissioner Waddell said.

“Our message is very clear that people are not to enter the water, so we encourage participants of that public assembly not to enter the water and to comply with directions from police and maritime officers who will be patrolling.

“We will have police out in force for the weekend from Traffic and Highway Patrol around the road to ensure community safety, to general duties and high visibility police and all sorts of specialist resources including Marine Area Command, Aviation Command, mounted police, the dog squad, and public order police.”

Image from a previous Port of Newcastle protest.

On Wednesday, Ms Stuart told The Daily Telegraphthe group still intends to protest on the foreshore.

“It remains completely legal for us to gather and protest on the beach,” Ms Stuart said.

“People that go on the water, even to swim or kayak, may be asked to leave – we view this as a massive overreach and we're calling on the minister to revoke the exclusion order.

“This is quite an extraordinary use of police powers we haven’t really seen before.”

Earlier on Tuesday protest organisers refused to rule out blockading the coal port despite port authorities warning an unexpected blockade would put both lives and the environment at significant risk.

Supporters also held a snap protest against the exclusion zone preventing them from entering the shipping lane as part of the action outside NSW transport minister Jo Haylen’s inner west electorate office.

“We respect people’s right to free speech and demonstration but where people commit criminal acts and interfere with the safety and general movements of the community we are going to take action,” Assistant Commissioner Waddell said.

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