Curbing our freedom: the NSW bill that should never have become law

The freedom to protest – to gather, to object, to call for change – is an indispensable component of our democracy. Social change has never been inevitable. Aspects of Australian life we take for granted today – women’s vote, the eight-hour work day, protected wilderness areas, Aboriginal and Torres Strait Islander land rights – occurred because ordinary Australians took to the streets. Protest gives a voice to the voiceless; it gives political power to those unable to wield influence through money and lobbyists. The freedom to protest matters – it goes to the heart of representative, democratic government.

Last week, the NSW government critically eroded that freedom. The Roads and Crimes Legislation Amendment Bill, which passed the Legislative Council on Friday, significantly undermines the ability of people in NSW to protest. It is a draconian measure – unnecessary, disproportionate, lacking oversight and containing only minimal safeguards. It should never have become law.

Protestors tied to a pole push for climate change action on a cargo train line near Port Botany in Pagewood on March 24.Credit: Nick Moir

The amendments radically expand an existing legislative provision that makes it an offence to cause disruption on the Sydney Harbour Bridge or other major bridges and tunnels. Under the new laws, causing disruption on any tunnel, road or bridge chosen by the government, or at railway stations, ports or infrastructure facilities, is punishable by up to two years’ imprisonment and a $22,000 fine.

The new provision is so broad and vague that almost all protest activity without prior approval now risks criminal sanction. Imagine school children gathering at a park in Sydney to protest against inaction on climate change. Say the large turnout means that protesters spill out into the entrance of a nearby railway station. They do not pose any safety risk, but commuters have to walk around the children to access the station. Those protesters – our children – could be imprisoned, for the crime of causing commuters to be “redirected”.

It is ironic that the new law has been cheered by those on the conservative-side of the political spectrum. All sides of politics use protest to pursue political change. Just as climate-concerned children take to the streets, so do farmers unhappy with government policy, striking teachers and nurses, those concerned about Aboriginal deaths in custody and those troubled by vaccine mandates and lockdowns. The breadth of the new law will create legal risk for all of those groups. It will leave police and prosecutors with immense discretion over which protesters to arrest and prosecute. That is not a good thing.

The only substantive safeguard in the new law is some limited protection for industrial action – the price of Labor’s support for the bill. This bargain was deeply misguided and short-sighted by Labor, which should have seen this law for the anti-democratic action it is and condemned it accordingly. While the carve-out for industrial action is better than nothing, it entrenches a hierarchy of protest rights. Protesting about workplace safety? That’s fine. Marching for climate action? Go to jail. It is extremely dangerous for the government to dictate what we can and cannot lawfully protest about.

NSW nurses and midwives march to Parliament House on Thursday. Credit: Louise Kennerley

Hopefully this draconian law will be short-lived. It bears many similarities with a Tasmanian anti-protest law struck down by the High Court in 2017 (which one judge described at the time as a “Pythonesque absurdity”). Both offend the implied freedom of political communication – the frail shield for free speech we have in Australia, in the absence of an Australian charter of human rights.

The rush with which this became law – less than a week – and the consequent absence of appropriate scrutiny and clear consideration of necessity will weigh against the law being valid. Protesters who become violent or endanger public safety can already be dealt with under existing laws. The absence of justification for this new offence will leave it vulnerable to constitutional challenge.

Yet the Perrottet government’s latest bill is no outlier. Across Australia, it is becoming harder to protest. The Tasmanian government is consulting on a new law to replace the one struck down by the High Court. Other states and territories have contemplated anti-protest laws. Police routinely harass protesters. Arrests are common. This affects every Australian. But it has a particularly acute impact on those who are disadvantaged or marginalised, for whom protesting is often the only viable form of political expression.

Last Thursday, as the upper house was debating this anti-protest law, nurses rallied on Elizabeth Street in central Sydney to call for better working conditions. After all they have been through over the past two years, surely this government should be listening and acting on their demands – and respecting their freedom to protest. Instead, it was simultaneously making it harder to protest, harder for these nurses to be heard and harder for all of us to raise our voices.

Kieran Pender is a senior lawyer with the Human Rights Law Centre.